Volume 36, Issue 2

“Surround yourself with the best people you can find, delegate authority, and don’t interfere.”

–President Ronald Reagan

Though not the largest oil spill the United States has ever experienced, nor its worst environmental disaster, the BP/DEEPWATER HORIZON Oil Spill (DEEPWATER HORIZON) was enormous and devastating. Ignited by pressurized methane gas bubbling up from a depth of 18,360 feet below the sea, the DEEPWATER HORIZON oil rig exploded on April 20, 2010, killing eleven men. After the rig sank two days later, breaks in the riser pipe connecting the rig to the ocean floor began spewing hundreds of thousands of gallons of crude oil and gas into the Gulf of Mexico. At first, the spill was nearly impossible to control effectively. Oil flowing from the well washed up on the shores of Louisiana, Alabama, and Mississippi, and polluted thousands of square miles of ocean. Three months later, the well was successfully capped, ending the catastrophic flow of oil. Assessment of the ecological and economic damage continues, as do cleanup efforts.

Although some may believe that no one contemplated that an environmental disaster of such magnitude could occur, for catastrophes like DEEPWATER HORIZON, a coordinated national emergency response plan has existed in some form in the United States since 1968. The National Oil and Hazardous Substances Pollution Contingency Plan (NCP), created to respond to oil spills and hazardous substance releases, was borne out of the 1967 TORREY CANYON disaster off the coast of England. After the supertanker ran aground and spilled over thirty-one million gallons of crude oil into the Celtic Sea, the U.S. Government, recognizing the United States’ own vulnerability, created the NCP, which provided a national response strategy for oil spills. Many acts of Congress required amendment and expansion of the NCP over the years, culminating in the passage of the Oil Pollution Act of 1990 (OPA), which resulted in the most recent major revisions to the NCP. Read More…

The Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, was enacted in 1908 to provide railway workers with a federal cause of action against their employers for negligently inflicted workplace injuries and illness. In 1920, the Jones Act, 46 U.S.C. § 30104, followed suit, giving seamen a negligence cause of action against their employers by incorporating FELA. The United States Supreme Court has frequently declared that “the Jones Act adopts ‘the entire judicially developed doctrine of liability’ under [FELA].” Although on four occasions the Supreme Court has held that the Jones Act is sometimes more plaintiff-friendly than FELA, there is nevertheless a presumption that FELA jurisprudence governs Jones Act cases, and vice versa.

“Absent express [statutory] language to the contrary, the elements of a FELA claim are determined by reference to the common law [of negligence].” In explicit language, FELA departs from the common law of Negligence in four respects: “It abolished the fellow servant rule, rejected contributory negligence in favor of comparative negligence, prohibited employers from contracting around the Act, and abolished the assumption of risk defense.” All four of these departures involve affirmative defenses to Negligence liability. This Article addresses the legitimacy and meaning of a fifth departure that was recently spotlighted in CSX Transportation, Inc. v. McBride. Unlike the four well-accepted FELA abolitions of affirmative defenses, the McBride departure–one that is destined to remain somewhat controversial–goes to the heart of a FELA plaintiff’s prima facie case in Negligence. Read More…

This is the eleventh article in a series of annual reports on U.S. admiralty and maritime law and practice. In these articles we try to call attention to the principal national-level developments that bear on the work of admiralty judges, lawyers, and scholars, and we look more closely at the relevant work of the United States Courts of Appeals for the Fifth and Eleventh Circuits. Read More…

This Survey provides a brief summary of the more significant cases in maritime law to have been decided in Australia during 2010 and early 2011. It begins by considering two judgments of the High Court of Australia that may be of interest to readers. Read More…

On January 10, 2011, the Judicial Committee of the Supreme People’s Court of China, at its 1509th meeting, adopted the Provisions of the Supreme People’s Court on Trying Cases About Disputes on Compensation for Oil Pollution Damage from Ships (Oil Pollution Provisions). The Oil Pollution Provisions were promulgated by the Supreme People’s Court on May 4, 2011, and came into force on July 1, 2011. The Oil Pollution Provisions consist of thirty-two articles.

Before the Oil Pollution Provisions were adopted, the China Vessel-Source Oil Pollution Compensation Regime (CVOPCR) provided a legal framework consisting of international conventions and China’s domestic legislation. Specifically, China is a party to the International Convention on Civil Liability for Oil Pollution Damage of 1992 (CLC-92) and the International Convention on Civil Liability for Bunker Oil Pollution Damage of 2001 (Bunker Convention). In addition, China enacted several domestic laws governing vessel-source oil pollution damage and compensation owed by polluting ships, which include the Marine Environment Protection Law of the People’s Republic of China (Amended), China Maritime Code (CMC), Special Maritime Procedural Law of the People’s Republic of China, and Regulation on the Prevention and Control of Vessel-Induced Pollution to the Marine Environment (Oil Pollution Regulations). In practice, the coexistence of the above mentioned laws has caused irregularities and inconsistencies in the application of law. Also, the above laws do not address important issues with respect to vessel-source oil pollution compensation, namely the procedures for creating an oil pollution limitation fund. Read More…

In 2010, the general rules of the Act on Safety at Sea (Safety at Sea Act), which divide the responsibilities regarding safety at sea between the shipowner, master, etc., were amended. Previously, section 9 of the Safety at Sea Act only placed responsibility on the shipowner for ensuring that faults and defects that the shipowner had knowledge of were repaired and that the ship conformed with the legislation’s requirements as to inspections and certifications. In other respects, the master was the primary person responsible. With the technological advances in facilitating communication between ships and their land-based organizations, allocating most of the responsibilities to the master was found to be outdated. As amended, the shipowner has the overall responsibility for ensuring that all safety regulations are observed; it has been further clarified that this responsibility continues even if the shipowner has delegated or outsourced various tasks. It has further been clarified that if the shipowner has delegated the International Safety Management (ISM) Code responsibility to a third party, then this party will also be responsible under the Act for the observance of all regulations regarding the transferred obligations and fields of responsibility. The increase in responsibility for the shipowner has also been worked into the penalty provisions of the Act. Thus, in relation to the Danish scheme for criminal liability for corporations, which may be described as a vicarious criminal liability, the shipowner will be accountable for actions of the employees on board the ship even if the shipowner is not the employer. If a Document of Compliance (DoC) under either the ISM Code or the Maritime Labour Convention has been issued to someone other than the shipowner, then in addition to the shipowner the holder of the DoC will also be held accountable for the actions of the master and crew.

Decided six years ago, the Corte Costituzionale della Repubblica Italiana’s (Constitutional Court) decision of May 26, 2005, is one of the most important decisions in the last twenty years in Italy, because it brought very important changes to the Italian legal system regarding national regulation of a carrier’s liability. As a background matter, Italy enacted the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading in the Codice della navigazione (Italian Navigation Code), which was promulgated in 1942, but did not enact the subsequent Visby Amendments (Hague-Visby Rules). The result is that Italian national law does not recognize those subsequent amendments, including provisions under article 4, rule 5(e), which exclude the carrier’s right of limitation where damage resulted from its intentional or reckless conduct; article 4, rule 5(a), which introduces the limitation per kilo; or article 4, rule 5(c), which pertains to containers. Another issue is the amount of a carrier’s liability per package or unit, which was set in 1942 and has not been changed since 1954. The result is that article 423 of the Italian Navigation Code provides only a limit per package or unit, which because of monetary depreciation is now roughly a mere $148 per package or unit. This problem is particularly severe in maritime carriage cases involving passengers with vehicles, which are considered as “goods” and not a “package.” Because passengers are not professional shippers, they are usually unaware of a carrier’s limitation of liability, so often, no declaration of a higher value is made. Thus, a carrier may discharge vehicles at their destinations that have been totally destroyed and be held liable for less than $150 for a damaged car (even for the most expensive cars on the market). Read More…

The new Third Parties (Rights Against Insurers) Act (2010 Act) provides third parties certain rights against insurers of liabilities where the insured is insolvent. It will come into force on a date prescribed by the Secretary of State. The 2010 Act, which repeals both the Third Parties (Rights Against Insurers) Act (Northern Ireland) 1930 and the Third Parties (Rights against Insurers) Act 1930, updates the law to reflect changes in insolvency law since the 1930s. The Act aims to set forth a more straightforward and cost efficient route to compensation for people who find themselves involved in a dispute with a party who is or becomes insolvent. To this end, the Act has introduced provisions that establish the right of the third party to seek, in a single action against the insurer, declarations regarding both the insured’s liability to it and the insurer’s potential liability under the insurance contract. Other key innovations include the introduction of detailed provisions on disclosure of insurance information to the third party, and the removal of some of the technical defences available to insurers under the original 1930 version. Read More…

As a result of common policy concerns in the field of transportation, broad legislation covering the maritime transportation of passengers will soon come into force in the European Union. Through Council Regulation 392/2009 of April 23, 2009, and Council Regulation 1177/2010 of November 24, 2010, the European Union enacted new laws covering liability for damages to passengers carried by sea (and inland waterways), their luggage (including cars), and their rights as passengers during the performance of the contract of carriage. Both regulations were inspired by the will to protect the passenger, who is considered the weaker party in a contract of carriage. Thus, the European Union aims to provide passengers the same protection accorded to consumers in the internal market. Read More…

The purpose of this Article is to consider the role of the jurisdiction agreement, whether for court jurisdiction or arbitration, in multimodal transport. This Article will consider the approach taken by the English common law rules; the approach taken in the rules agreed to by the Member States of the European Union in Council Regulation 44/2001 of December 22, 2000, titled “On Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters” (E.C. Jurisdiction Regulation); and the approach of various international conventions relevant to carriage of goods culminating in the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) adopted in 2008 and signed in Rotterdam in September 2009. It will be shown that there is currently no agreement worldwide on two fundamental issues that lie at the heart of the role of the jurisdiction agreement in this field: (1) whether a neutral choice of jurisdiction that has no connection with the dispute is permitted and (2) whether a third party should be bound by that agreement. Read More…

The United Nations Convention on International Multimodal Transport of Goods of 1980 (Multimodal Convention) states in article 21 that a multimodal transport operator will lose its right to limit liability if it is personally guilty of willful misconduct. However, the Multimodal Convention, which was intended to enter into force together with the United Nations Convention on the Carriage of Goods by Sea of 1978 (Hamburg Rules), did not gain any international support. Presently, there is no universally accepted international regime on the multimodal transport of goods. As a result, the issue of breaking liability limits in multimodal transport cannot be explained by simply referring to article 21 of the Multimodal Convention, but instead depends entirely on the applicable international or national regime. The core problem regarding multimodal transport of goods is determining which legal regime is applicable. Explaining this core problem in detail is beyond the extent of this Article, but it can be said that the approaches taken from both sides of the Atlantic are fundamentally different. Consequently, the criteria for imposing unlimited liability will depend on the applicable regime, and the applicable regime will, in turn, basically depend on which forum handles the case. Read More…

Multimodal transport pursuant to a through bill of lading can present a complicated set of relationships when goods are lost or damaged. Using some terminology of the Rotterdam Rules, these issues, among others, are currently resolved as follows:

Shipper’s rights against the ocean “carrier” are determined under the Carriage of Goods by Sea Act (COGSA) or as provided in a service contract or a voyage charterparty between shipper or consignee and carrier.

Shipper’s rights against a maritime performing party such as a stevedore, terminal operator, etc., are determined under the law of torts if there is no contract. However, bills of lading usually contain a Himalaya clause which extends to maritime performing parties the same defenses and limits of liability that may be invoked by the carrier under COGSA and its bill of lading.

Shipper’s rights against an overland carrier who initially receives cargo for multimodal transport that includes a subsequent sea leg will be discussed infra.

Shipper’s rights against a nonmaritime performing party such as an overland carrier who is not the initial carrier but who transports the goods within the United States after their arrival at a U.S. port from a foreign port will also be discussed infra.

Carrier’s rights to indemnity or contribution against a performing party, whether maritime or nonmaritime, are not provided by statute and are derived from the general maritime law or state law on contracts and torts, which is beyond the scope of this Article.

Multimodal transport operates in a context of carriage law largely governed or at least influenced by unimodal conventions. The interaction of these unimodal regimes leads to unnecessary multi-layered complexities, overlapping legal instruments, and results in lacunae for multimodal transport. Although several contractual solutions have been used in practice to minimise these inherent problems, the mandatory nature of these unimodal conventions limits the scope of contractual provisions and leads to uncertainty. A cargo claimant thus faces many hurdles in establishing and making a valid claim arising out of a multimodal carriage contract. Read More…

On December 11, 2008, the United Nations General Assembly adopted the Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, known as the Rotterdam Rules. The Rotterdam Rules strive to extend and modernize the existing international regimes that regulate contracts for maritime carriage of goods. The Rotterdam Rules were intended to replace the Hague Rules, the Hague-Visby Rules, and the Hamburg Rules, in order to achieve uniformity of law in maritime carriage of goods. The United Nations Commission for International Trade Law (UNCITRAL) prepared the Rotterdam Rules during intergovernmental negotiations, which lasted for over ten years. The Comité Maritime International (CMI) conducted the preparatory work on the Rotterdam Rules. The final text was signed in Rotterdam in September 2009. Since then, twenty-four countries representing twenty-five percent of the world’s trade have signed the Rotterdam Rules. Read More…

In Europe, liability issues arising from the international carriage of goods are primarily governed by separate multilateral conventions for each mode of transport. This creates problems where multimodal transport is concerned because the relationship between these conventions is not always clear, for example, in cases where damage occurring to goods in transit cannot be localized. With no global solution to the complexities of multimodal transport in sight, the European Union has been moving slowly towards some form of intervention in this area for its twenty-seven Member States. This Article examines two variations of an approach the E.U. could work toward as part of a longer-term multimodal transport strategy, involving amendments to Europe’s road and rail transport conventions. Read More…

The legal framework of international multimodal transport is tangled and complex, primarily because of the failure to agree on a discreet international convention. By contrast, agreement has been reached on several international and regional unimodal transport regimes. Consequently, the legal position relating to those regimes enjoys greater clarity and certainty, but none is wholly free of difficulties. It is also obvious that the logistics of international multimodal transport manifest a greater and more varied number of performance operations than international unimodal transportation, a factor which further contributes to the prevailing legal and commercial complexity.

In relation to international multimodal transport, there is also a less settled usage as to the appropriate defining language, with such phrases as “multimodal transport,” “combined transport,” “through transport,” and “intermodal transport” used interchangeably and somewhat loosely. In the defunct United Nations Convention on International Multimodal Transport of Goods of 1980 (Multimodal Convention), reference is made to “multimodal transport.” This mode of description appears to be increasingly followed in linguistic usage; though, as a perusal of texts, journals, and law reports will readily confirm, the alternatives are far from disappearing. Read More…

Fane Lozman lived in his gray, two-story houseboat for nearly seven years until April 20, 2009, when the United States Marshal arrested the defendant houseboat after the City of Riviera Beach filed an admiralty complaint against it. By doing so, the City sought to foreclose a maritime lien for unpaid dockage provided to the houseboat by the City marina. Lozman purchased the defendant houseboat in 2002 and towed it approximately 200 miles to North Bay Village, Florida, where he lived on it for the next three years. In March 2006, after Hurricane Wilma struck, Lozman had the houseboat towed to the city marina, where he entered into an agreement with the City to pay a monthly dockage fee to keep the houseboat in the marina. The houseboat was Lozman’s primary residence and remained at the marina until its arrest in 2009.

The conflict leading to the defendant houseboat’s arrest arose after the city council unanimously passed a revised dockage agreement for the city marina that called for new insurance and vessel requirements. The city marina sent out letters requiring execution of the new dockage agreement by a certain date; Lozman failed to execute the new agreement by that date and did not satisfy the new requirements. Lozman also owed dockage and fees amounting to about $3000. The City subsequently informed Lozman of its intent to enforce the maritime lien for necessaries, and the defendant vessel was arrested on April 20, 2009. The City filed a complaint seeking to foreclose its maritime liens for dockage at the marina, a “necessary,” pursuant to 46 U.S.C. § 31342. Read More…

During the late hours of Christmas Eve 2007, a collision on the Mississippi River between the up-river bound tug M/V DAN MACMILLAN and the down-river bound tug M/V JOHN M DONNELLY broke several barges free from the DAN MACMILLAN’s tow. After drifting more than two miles down the river, one of those barges drifted into a connecting channel and eventually grounded on its bank. The waterway in which the barge grounded served as the intake channel for a hydroelectric station owned by Catalyst Old River Hydroelectric Limited Partnership (Catalyst). The channel’s purpose was to divert water from the Mississippi River toward the station’s dam structure, where turbines use the water’s flow to generate electrical power. The barge grounded on the bank in a way that obstructed the continuous flow of water through the channel to the station’s turbines. In order to prevent the barge from sinking and facilitate its safe removal, Catalyst reduced the current in the intake channel by shutting down six of the station’s eight turbines. The removal effort continued for approximately twenty hours, and Catalyst’s facility suffered no physical damage as a result of the incident. However, by operating its turbines at reduced capacity during the barge’s removal, Catalyst’s station generated substantially less electrical power than it otherwise would have. As a result, Catalyst brought claims against American River Transportation Company and Ingram Barge Company, the owners of the vessels involved in the collision, to recover the value of the lost electrical output. Read More…

In March 2007, Odyssey Marine Exploration, Inc. (Odyssey) discovered the remains of a shipwrecked vessel along with approximately 594,000 rare coins and other valuable artifacts spread over 40,000 square meters of the ocean floor in international waters 100 miles west of the Straits of Gibraltar. Eager to begin its recovery efforts, Odyssey filed a complaint in the United States District Court for the Middle District of Florida against “The Unidentified Shipwrecked Vessel, its apparel, tackle, appurtenances and cargo,” simultaneously asserting a possessory claim pursuant to the law of finds and a salvage claim under the law of salvage. Shortly thereafter, the clerk issued a warrant directing the United States Marshal to take possession of a small bronze block recovered from the shipwreck to symbolize her arrest in rem and appointing Odyssey as the substitute custodian of the vessel and her artifacts until further direction from the court. Upon Odyssey’s publication of the notice of arrest, the Kingdom of Spain filed a claim to the vessel, its contents, and cargo, and subsequently filed a motion requesting more information identifying the vessel. Alternatively, Spain sought dismissal of Odyssey’s complaint, claiming that it failed to “describe with reasonable particularity the property that is the subject of the action” in accordance with the heightened pleading requirements for an in rem complaint in admiralty. In response, Odyssey filed an amended complaint in which it plead ignorance as to the identity of the wrecked vessel, responding to interrogatories from the court by stating only that the site may be linked to the NUESTRA SENORA DE LAS MERCEDES Y LAS ANIMAS (MERCEDES). Read More…

The story of RMS TITANIC has fascinated the public ever since the fateful night of April 15, 1912, when she hit an iceberg and sank, causing the death of over 1500 passengers and crewmen. Since then, TITANIC has been the subject of numerous movies, television documentaries, print stories, academic conferences, and museum exhibits. Although the wreck’s general location, approximately 400 nautical miles southeast of Newfoundland, Canada, was well known, it was not until 1985 that a joint American-French team discovered the wreck’s actual location. In 1987, Titanic Ventures Limited Partnership, predecessor-in-interest to RMS Titanic, Inc./Premier Exhibitions (RMST), and Institut français de recherché pour l’exploitation de la mer (IFREMER) began salvage work on the site, during which time they raised approximately 1800 artifacts. RMST continued salvaging the wreck site in conjunction with IFREMER and then later with P.P. Shirshov Institute of Oceanology of Moscow, Russia. RMST raised several thousand artifacts during 1993, 1994, 1996, 1998, 2000, and 2004, and has since conserved those artifacts at its facility in Atlanta, Georgia. Read More…

On June 16, 2005, a barge carrying 400,000 gallons of benzene, a toxic, highly flammable, and carcinogenic liquid, sprang a leak on the Mississippi River near St. Louis, Missouri. Conoco Phillips hired Canal Barge Company, the owner of the barge, to transport the toxic substance from Illinois to Kentucky. When the leak was discovered, Jeffery Scarborough, a Canal Barge employee, instructed deckhands to seal the opening with a bar of soap. Scarborough then called Paul Barnes, the port captain in the company’s Louisiana office, who instructed Scarborough to apply a temporary epoxy patch over the leak. The barge’s captain, Randy Martin, was off duty and asleep but resumed control of the barge later that day. The barge was later transferred to a tugboat near Cairo, Illinois, and then continued onto the Ohio River. On June 20, the epoxy patch failed. At that time, the captain of the tugboat notified the Coast Guard Office in Louisville, Kentucky. Read More…

This dispute arose from the Jones Act negligence claim of Harold Leonel Pineda Lindo, a Nicaraguan citizen and resident, after he sustained injury while working for Norwegian Cruise Line (Bahamas) Ltd. (NCL) on its private island in the Bahamas. Lindo’s employment contract with NCL included a collective bargaining agreement and contained an arbitration clause, which provided that all claims were subject to binding arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Lindo’s contract further provided that “[t]he place of the arbitration shall be the Seaman’s country of citizenship, unless arbitration is unavailable under The Convention in that country, in which case, and only in that case, said arbitration shall take place in Nassau, Bahamas” and that “[t]he substantive law to be applied to the arbitration shall be the law of the flag state of the vessel.” Thus, pursuant to Lindo’s contract, any claim would be subject to arbitration in Nicaragua under Bahamian law. Read More…